Myers v. Colvin
Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 9/23/2014. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Commissioner of Social Security,*
CIVIL ACTION NO. 13-00099-B
this action seeking judicial review of a final decision of the
Commissioner of Social Security denying her claim for a period
of disability, disability insurance benefits, and supplemental
security income under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq.
On April 10,
2014, the parties consented to have the undersigned conduct any
and all proceedings in this case.
Thus, the action
was referred to the undersigned to conduct all proceedings and
636(c) and Federal Rule of Civil Procedure 73.
consideration of the administrative record and the memoranda of
Commissioner be REVERSED and REMANDED.
Plaintiff protectively filed an application for a period of
security income on November 9, 2009.
(Tr. at 156).
alleged that she had been disabled since August 31, 2009, due to
sleep disorder, problems with knees, asthma, and poor vision.
(Id. at 160).
Plaintiff did not allege a mental impairment of
any kind. (Id.).
Plaintiff’s applications were denied and upon
timely request, she was granted an administrative hearing before
Administrative Law Judge Vincent P. Intoccia (hereinafter “ALJ”)
on May 10, 2011.
(Id. at 28).
Plaintiff attended the hearing
with her counsel and provided testimony related to her claims.
(Id. at 30).
A vocational expert (“VE”) also appeared at the
hearing and provided testimony.
Plaintiff is not disabled.
(Id. at 45).
On June 13,
(Id. at 23).
The Appeals Council
denied plaintiff’s request for review on January 8, 2013.
The parties waived oral argument (Doc. 22), and agree
that this case is now ripe for judicial review and is properly
Issue on Appeal
Whether the ALJ erred in finding that Plaintiff
did not meet Listing 12.05C?
III. Factual Background
Plaintiff was born on December 1, 1988, and was twenty-two
years of age at the time of her administrative hearing on May
(Tr. 31, 155).
Plaintiff testified that she was in
regular classes and completed the twelfth grade in high school,
but she was not able to pass the reading portion of the Alabama
High School Graduation Examination.
Thus, she did not receive
her diploma, and she has not obtained a GED.
(Id. at 31-32).
license in 2009, that she had to take the oral examination three
times before passing it, and that someone generally drives her
(Id. at 37-38, 43, 47).
In her Function Report provided to the Agency, as well as
little over a year operating a sewing machine for a cap company,
and she also worked as a cashier in the fast food industry.
(Id. at 32-33, 47, 176).
In addition, Plaintiff reported that
she no children, and that before a house fire, she lived alone.
(Id. at 30-31, 37, 170-171).
According to Plaintiff, she takes
care of her personal needs; however, her mother performs her
Plaintiff also testified that she
Plaintiff testified that she lost her house and her car in
a fire in 2010; however, it appears that even before the fire,
Plaintiff was doing very limited driving. (Id. at 34, 43).
goes shopping with her mother and her sisters, that she pays her
own bills, that she has never had a checking account, and that
she goes to church a couple of times a month.
(Id. at 37, 42-
Additionally, Plaintiff testified that she spends her
time watching television and writing to herself.
(Id. at 42).
because she was laid off when the cap manufacturing company shut
(Id. at 33).
According to Plaintiff, the “biggest thing”
that keeps her from working now is her leg pain.
testified that she injured her left knee in gym class at school
Later, in 2008, Plaintiff was diagnosed with a meniscus tear
injury in her
(Id. at 34, 39,
41, 259, 339).
described the pain in her left and right knees as a seven or
eight on a ten-point pain scale.
(Id. at 36, 41).
stated that she takes a muscle relaxer and uses pain gel for her
knees and back.2
(Id. at 35-36, 190).
Standard of Review
In reviewing claims brought under the Act, this Court’s
Plaintiff listed no prescription pain medications in her report
to the Agency. (Tr. 194).
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).
Martin v. Sullivan, 894 F.2d
A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
affirmed if they are based upon substantial evidence.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
substantial evidence is defined as “more than a scintilla, but
evidence as a reasonable person would accept as adequate to
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Chester v. Bowen, 792 F. 2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
An individual who applies for Social Security disability
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
determining if a claimant has proven his disability. 4
The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
automatically found disabled regardless of age, education, or
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
claimant’s residual functional capacity, age, education, and
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
§§ 404.1520, 416.920.
Plaintiff had engaged in work activity after August 31, 2009, he
found that additional evidence was needed on this issue.
at 10). In order to avoid delay, he elected to proceed with the
remaining steps of the evaluation process because he determined
(Id. at 10-11).
To that end, the ALJ determined at
step two that Plaintiff has the severe impairments of obesity,
medial placation, hypertension, right torn meniscus, dysthymia,
and borderline intellectual functioning.
(Id. at 11).
further found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of
the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1.5
In determining that Plaintiff did not meet any Listing, the
ALJ made the following relevant findings:
4. The claimant does not have an impairment
or combination of impairments that meets or
Plaintiff’s only claim on appeal is that the ALJ erred at step
three in finding that she did not meet Listing 12.05C.
Therefore, the Court will address only that issue.
ALJ’s findings at steps four and five of the evaluation process,
see Tr. 14-15, 21-23.
impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
No treating or examining source or medical
expert has so concluded.
In addition, I
have examined the record, and I find that
the evidence does not
support such a
claimant’s severe impairments, considered
singularly or in combination, are not of
. . .
At first glance, it might be argued that the
claimant’s impairment meets Listing 12.05.
administered the Wechsler Adult Intelligence
Scale – Fourth Edition on March 16, 2011.
She obtained the following scores: Verbal
Comprehension 70, Perceptual Reasoning 71,
Working Memory 71, Processing Speed 76, and
Full Scale IQ of 67. Dr. Donald W. Blanton
indicated that these scores placed the
claimant in the mild range of mental
retardation at the time of testing (Exhibit
Section 12.05 C (B or D) refers to
retardation, which is defined as significant
sub average general intellectual functioning
along with deficits in adaptive behavior
functioning is defined as an IQ of 70 or
American Psychiatric Association,
Diagnostic and Statistical Manual of Mental
Disorders (3rd Edition). In this case, there
is no evidence of such alleged IQ prior to
age 22. Indeed the IQ test in question was
given to the claimant by a person hired by
the claimant’s attorney to perform the test
after the claimant’s 22nd birthday and in
fact after the claimant had applied for
disability and at a time when the claimant
clearly had the motivation to perform poorly
or to use less than her best efforts. . . .
In the instant case, the claimant has lived
independently until her trailer burned March
The claimant has worked for a living as a
Cap Machine Worker which is semi-skilled in
Semi-skilled work is work in which
some skills are involved. There is no
indication in the record that any employer
has ever given the claimant any special
consideration due to any alleged retardation
or that any employer, physician, or any
other person has ever even noticed any
alleged retardation on the part of the
The claimant has a driver’s license and
drove an automobile up until she had knee
surgery. She lost her car during the house
The claimant indicated on the Disability
Report that she completed the eleventh grade
and did not attend special education classes
The school records reflect
that the claimant was enrolled in twelfth
grade classes through the fourth nine weeks
Mathematics, Language, Science and Social
Studies portions of the Alabama High School
Graduation Examination (Exhibit 7E).
is no indication in the record that the
claimant was in “special education.”
. . .
In terms of the claimant’s alleged mild
referred by her attorney, Mr. Coplin for an
evaluation. The Wechsler Adult Intelligence
Scale-Fourth Edition was administered and
the claimant obtained the following scores:
Reasoning 71, Working Memory 71, Processing
Speed 76 and Full Scale IQ score 67.
Blanton indicated that this score placed the
claimant in the mild range of mental
retardation at the time of testing. Dr.
Blanton indicated that the score was felt to
represent a valid assessment of her current
level of intellectual functioning as there
were no distracting factors during the
testing session and she appeared to put good
effort into her work (Exhibit 16 F).
The claimant did not allege any disability
due to mental impairments at the time the
application was filed. This is despite the
fact that the Disability Report specifically
requests information about all conditions
affecting the ability to work. . . . There
is no evidence of the use of any medications
designed to treat psychiatric or mental
symptoms. . . .
The claimant related to Dr. Blanton that she
lives with her mother. She does no cooking
or cleaning. Her mother does all the
She spends most of her day
watching Lifetime on the television channel
The claimant has described
daily activities that are limited; however,
two factors weigh against considering these
allegations to be strong evidence, in favor
allegations cannot be objectively verified
with any reasonable degree of certainty.
activities of daily living are as limited as
alleged, it is difficult to attribute that
degree of limitation with the claimant’s
reasons in view of the medical evidence of
record and other factors discussed in this
The record indicates that the claimant
stopped working due to a business related
layoff rather than because of the allegedly
reported “I GOT LAID OFF FROM MY JOB.”
(Exhibit 2E). Further, there is no evidence
claimant’s medical condition since that
A reasonable inference, therefore,
is that the claimant’s impairment would not
prevent the performance of that job, as it
was being performed adequately at the time
of the layoff despite a similar medical
I note that the claimant received previous
unemployment compensation from the third
quarter of 2009 to the third quarter of
2010, a program that requires you to certify
under oath that you are able to work. The
whether the claimant is in fact able to work
or is in fact “disabled.”
factually, it has to be one or the other.
The claimant cannot be able to work and also
A person who is “disabled”
is not able to work.
The claimant has
admitted and conceded in her application to
the State of Alabama that she is in fact
able to work. . . .
Dr. Blanton, in Exhibit 16F, offered a
medical source opinion form (mental) on
March 16, 2011, which reads as follows:
examination and testing today, that
Tanesha V. Myers has marked limitations
activities on a day to day basis in a
regular work setting in the following
Understanding detailed or
3. Remembering details or complex
4. Use judgment in detailed or
complex work-related decisions.
period of at least two hours.
It is my opinion that her mental
condition and that her depression and
anxiety problems have been present at
this level for at least one year. It is
also my opinion that her condition is
likely to deteriorate if she is placed
under stress especially that of a job.
It is my opinion that the patient
functioning manifested prior to age 22
due to her mental retardation in the
following areas: communication, self
care, work, use of community resources,
and functional academic skills.
I give little weight to Doctor Blanton’s
opinion. It is emphasized that the claimant
Exhibit 16F, that formed the basis of the
opinion in question, not in an attempt to
seek treatment for symptoms, but rather,
through attorney referral and in connection
with an effort to generate evidence for the
current appeal. Further, the doctor was
presumably paid for the report. Moreover,
Dr. Blanton is not a clinical psychologist.
He is a licensed professional counselor.
consideration, the fact that the examination
was rendered in preparation for litigation
is a relevant factor for consideration (See
Dixon v. Apfel, 200 U.S. Dist. LEXIS 18073
(S. Dt. AL) (2000). . . .
Security Act, from August 31, 2009, through
404.1520(g) and 416.920(g)).
The Court now considers the foregoing in light of
the record in this case and the issue on appeal.
a. Whether the ALJ erred in finding that
Plaintiff did not meet Listing 12.05C?
Plaintiff argues that the ALJ erred in finding that she
does not meet the requirements of Listing 12.05C.
work-related limitation of function.
(Doc. 14 at 5-8).
Commissioner counters, however, that the ALJ properly found that
Plaintiff’s mental impairments do not meet or medically equal
Listing 12.05C because Plaintiff has not shown that she has
deficits in adaptive functioning, which is required in order to
meet the Listing.
(Doc. 18 at 6-7).
Having carefully reviewed
the record in this case, the Court finds that the ALJ’s decision
is not supported by substantial evidence.
As stated above, the Social Security regulations set forth
a five-step sequential evaluation process to determine whether a
burden of proving that an impairment meets or equals a listed
See Harris v. Commissioner of Soc. Sec., 330 Fed.
Appx. 813, 815 (11th Cir. 2009) (unpublished) 6 (citing Barron v.
Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)).
presumptive disability under section 12.05(C), a claimant must
present evidence of “[a] valid verbal, performance or full scale
IQ of 60-70 and a physical or other mental impairment imposing
function.” 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.05(C).
description’ of mental retardation in Listing 12.05 (the listing
category for mental retardation/intellectual disability), 7 which
“Unpublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11TH CIR. R. 36-2.
On August 1, 2013, the Social Security Administration amended
Listing 12.05 by replacing the words “mental retardation” with
See Hickel v. Commissioner of Soc.
Sec., 539 Fed. Appx. 980, 982 n.2 (11th Cir. 2013) (citing 78
Fed. Reg. 46,499, 46,501, to be codified at 20 C.F.R. pt. 404,
subpt. P, app. 1)).
“This change was made because the term
‘mental retardation’ has negative connotations, and has become
offensive to many people.
(citations and internal
quotation marks omitted). “The Social Security Administration
stated that the change does not affect the actual medical
definition of the disorder or available programs or services.”
Id. (citations and internal quotation marks omitted). As in
Hickel, this opinion uses the term “mental retardation” and
“intellectual disability” interchangeably.
supports onset of the impairment before age 22.”
20 C.F.R. Part
disability under section 12.05(C) when the claimant presents a
valid I.Q. score of 60 to 70 inclusive, and evidence of an
additional mental or physical impairment that has more than a
‘minimal effect’ on the claimant’s ability to perform basic work
Smith v. Commissioner of Soc. Sec., 535 Fed. Appx.
894, 897 (llth Cir. 2013)(quoting Lowery v. Sullivan, 979 F. 2d
835, 837 (11th Cir. 1992)).
Thus, a valid I.Q. score creates a
rebuttable presumption that the claimant manifested deficits in
adaptive functioning prior to the age of twenty-two.
v. Barnhart, 276 F. 3d 1265, 1268-69 (llth Cir. 2001).
activities and behavior.
See Popp v. Heckler, 779 F.2d 1497,
1499-1500 (llth Cir. 1986).
Accordingly, the ALJ is tasked with
determining whether there is sufficient evidence (relating to
plaintiff’s daily life) to rebut the presumption.
See Grant v.
Astrue, 255 Fed. Appx 374, 375 (llth Cir. 2007); Hartman v.
For example, in Hickel v. Commissioner, 539 Fed. Appx.
980 (llth Cir. 2013), the Eleventh Circuit found that the ALJ
did not err where the ALJ acknowledged that the claimant had a
rebutted by other evidence that showed that the claimant did not
have “deficits in adaptive functioning.”
Id., 539 Fed. Appx. at
In reaching its decision, the court in Hickel noted that
the claimant did not dispute that she is a high school graduate;
she works part time at a nursery; she drives herself to work;
she prepares simple meals and dresses and grooms herself; she
attends church regularly; and she socializes with friends.
consistent with borderline intellectual functioning than mild
Id. at 984-85.
In the case at hand, the undersigned finds, based on a
careful review of the record, that the ALJ did not apply the
First of all, the record establishes that Dr.
Fourth Edition to Plaintiff on March 16, 2011, and she obtained
Reasoning 71, Working Memory 71, Processing Speed 76, and Full
Scale IQ score of 67.
In his decision, the ALJ does
not make clear whether or not he deemed the IQ score to be
valid; however, he did state that “[i]n this case, there is no
evidence of such alleged IQ prior to age 22.”
supra, where a claimant presents a valid IQ score, the claimant
is entitled to the presumption recognized in Hodges, and as a
result, is not required to demonstrate deficits in more than one
area of adaptive functioning before the age of 22.
to the extent the ALJ in this case found that Plaintiff’s IQ
score was valid, he erred because he did not accord her the
presumption recognized in Hodges.
See Grant v. Astrue, 255 Fed.
Appx. 374, 2007 U. S. App. LEXIS 26540 (llth Cir. 2007)(ALJ
presumption recognized in Hodges, but instead required her to
functioning before the age of 22.
Upon remand, the ALJ was
directed to determine whether there was sufficient evidence to
rebut the presumption that the plaintiff manifested deficits in
adaptive functioning before the age of 22).
Assuming, arguendo, that the ALJ determined that the IQ
invalidating the score.
In his opinion, the ALJ noted:
Indeed the IQ test in question was given to the
claimant by a person hired by the claimant’s
attorney to perform the test after the claimant’s
22nd birthday and in fact after the claimant has
applied for disability and at a time when the
claimant clearly had the motivation to perform
poorly or to use less than her best efforts. It
is interesting to note that the claimant told Dr.
Blanton before the testing session that she could
not see out of her right eye very well but she
could not afford glasses.
(Tr. at 12-13).
Blanton by her attorney does not in and of itself provide a
basis for rejecting the scores from the IQ test administered by
Indeed, in Hickel v. Commissioner, the Eleventh
Circuit rejected a similar rationale and noted that there was
nothing in the record to reflect how the medical sources were
compensated, and that “generating evidence is the purposes of
obtaining opinions from medical sources, whether paid for by the
Commissioner or by the claimant.”
Hickel, 539 Fed. Appx. at
consultative examiner was retained by the claimant rather than
the Commissioner was simply not, standing alone, a valid basis
for rejecting his opinion.
In this case, there is nothing
which reflects who paid for Dr. Blanton’s services; however, the
fact that he was compensated for his services, and that he was
provide a valid basis for rejecting his opinions nor the results
of his IQ testing.
presumably the IQ results, the ALJ noted that Dr. Blanton is not
counselor who is permitted to administer testing.
is not a valid reason for rejecting Dr. Blanton’s opinions or
his IQ testing.
There is nothing in the record which suggests
While Dr. Blanton did note that Plaintiff complained that she
could not see very well out of her right eye, he opined that the
intellectual functioning, as there were no distracting factors
during the testing, and she appeared to put good effort into the
In sum, the ALJ failed to provide valid
reasons for rejecting the IQ scores.
The undersigned further finds that the ALJ’s errors are not
harmless because it is not clear that the record evidence would
functioning before age 22.
First, while two of the consulting
intelligence, the evidence is undisputed that they did not have
the benefit of Plaintiff’s IQ scores, nor is there anything to
suggest that they administered any IQ testing to Plaintiff. 8
At the request of the Agency, Dr. Nina Tocci, Ph.D. conducted a
mental examination of Plaintiff on April 7, 2010.
found that Plaintiff’s affect was appropriate, normal and
stable, that she was oriented to time, place, person and
fact, during Dr. Tocci’s mental health examination of Plaintiff,
(Id. at 269).
Additionally, the record reflects
school through twelfth grade, she did not graduate due to her
inability to pass the English portion of the graduation exam
Plaintiff successfully passed the non-English portions of the
exam after no less than five attempts.
(Id. at 200).
license, she had to take the oral examination three (3) times
before obtaining her license, and she is generally driven by
Additionally, Plaintiff’s work history reveals that she
situation, and that she demonstrated distracted attention and
Dr. Tocci also observed that while
demonstrated a poor fund of information and poor social
judgment. Dr. Tocci also observed that Plaintiff “appeared to
be functioning within the borderline range of intellectual
and opined that her prognosis was guarded.
assigned Plaintiff a GAF of 60, and opined that she was
motivated to participate in the examination. (Tr. 270)
Dr. Donald Hinton, Ph.D., also completed a Mental RFC
Assessment at the request of the Agency on April 13, 2010. (Tr.
Dr. Hinton reviewed the records and opined that
“Dysthymia” and that she had moderate limitations in her mental
abilities. (Id.) (emphasis added).
operation of a sewing machine in a cap factory, and a string of
fast food positions.
Further, while Plaintiff is able to care
for her own personal needs, and at one point lived alone, her
daily activities are fairly restricted, and she relies upon her
mother to assist with chores, shopping, etc.
In light of the foregoing, the Court finds that the ALJ’s
determination that Plaintiff does not meet or medically equal
Listing 12.05C is not based on substantial record evidence.
noted supra, the ALJ did not proffer valid reasons for rejecting
Plaintiff’s IQ scores, and to the extent he did not reject the
scores, he did not afford Plaintiff the presumption of deficits
likewise failed to determine whether the presumption had been
rebutted by the record evidence.
Because the ALJ did not apply
the correct standard in this case, this case must be REVERSED
See Hartman v. Colvin, 2014 U.S. Dist. LEXIS
91467 (S.D. Ala. July 7, 2014)(remanding case where it was far
from clear that had the ALJ applied the correct standard, the
plaintiff did not meet Listing 12.05 (C)).
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for a
supplemental security income be REVERSED and REMANDED.
DONE this 23rd day of September, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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